Citation NR: 9738706
Decision Date: 11/19/97 Archive Date: 12/02/97
DOCKET NO. 94-08 887 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for a bilateral knee
condition.
2. Entitlement to an increased rating for chronic low back
strain, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. A. Saadat, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1989 to
August 1993.
By an October 1993 rating action, the aforementioned regional
office (RO) granted service connection for chronic low back
strain and assigned a 20 percent rating. By the same rating
action, the RO denied service connection for a bilateral knee
condition. The veteran filed a notice of disagreement in
December 1993. A statement of the case was issued in January
1994. The veteran perfected his appeal in March 1994.
By a May 1994 rating action, the RO confirmed the 20 percent
rating for chronic low back strain and continued to deny
service connection for a bilateral knee condition. A
supplemental statement of the case was issued later that
month.
On his Form 9, the veteran had requested a local hearing
before a member of the Board. A hearing before a local
hearing officer was scheduled for October 1994, thought the
veteran failed to appear. In October 1996, the Board of
Veterans' Appeals (Board) remanded the veteran's claims so
that a Travel Board hearing could be scheduled. This hearing
was scheduled to take place in May 1997, but the veteran
failed to appear. A supplemental statement of the case was
issued in August 1997.
In a written brief presentation dated in September 1996, the
veteran's representative appears to raise a claim concerning
service connection for a pelvic condition. Since this matter
has not been developed or certified for appeal, and inasmuch
as it is not inextricably intertwined with the issues now
before the Board on appeal, it is referred to the RO for
initial consideration.
REMAND
The veteran essentially claims that he is entitled to service
connection for a bilateral knee condition. The veteran also
contends that his service-connected low back condition is
more severely disabling than reflected by the rating
currently assigned by the RO.
On his May 1994 substantive appeal, the veteran asserted that
following an MRI at an Army medical center, a physician
advised him that his knees were in “bad condition” and could
eventually require surgery without any guarantee of success.
The service medical records contained in the claims file
include a medical report from Tripler Army Medical Center,
dated in June 1993. This report indicates that an MRI was
performed, “but not here.” The report concludes that the MRI
should be located and reviewed. The claims file does not
contain a copy of this MRI report. Although the veteran has
the burden of submitting evidence in support of his claim,
this critical evidence may be in the control of the Federal
Government. In such situations, the VA should be responsible
for providing or obtaining the material. Murphy V.
Derwinski, 1 Vet. App. 78, 82 (1990).
The Board notes that the veteran underwent a general medical
examination for VA purposes in September 1993. He reported
that he experienced knee pain when there was an attack of
severe low back pain. Examination revealed limited extension
of the knees, left more than right, because of low back pain.
The examiner diagnosed the veteran as having, in pertinent
part, bilateral knee pain. However, following a joints
examination for VA purposes in September 1993, the veteran
was diagnosed as having arthralgia of the knees of
undetermined cause. If evidence of a disability of the knees
is demonstrated on any MRI report located, the RO should
examine the veteran and confirm the presence of a current
disability and its relationship to service or to the service-
connected low back strain.
The claims file indicates that the veteran failed to report
for an examination for VA purposes which was scheduled to
take place in June 1997. However, the veteran was not warned
of the procedural consequences for his failure to appear,
under the provisions of 38 C.F.R. § 3.655 (1996). A remand
is necessary to correct this procedural defect.
The importance of a new examination to ensure adequate
clinical findings should be emphasized to the veteran, and he
should be afforded another opportunity to cooperate with an
examination request. However, the Board stresses to the
veteran and to his representative that, although the VA has a
duty to assist the veteran with the development of the
evidence in connection with his claim, the duty to assist is
not always a one-way street. 38 U.S.C.A. § 5107(a) (West
1991); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO
should advise the veteran that failure to report, without
good cause, for an examination scheduled in connection with a
claim for an increased rating shall result in denial of his
claim. 38 C.F.R.
§ 3.655 (1996).
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States
Court of Veterans Appeals (Court) held that in evaluating a
service-connected disability involving a joint, the Board
erred in not adequately considering functional loss due to
pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45. The Court in DeLuca held
that Diagnostic Codes pertaining to range of motion do not
subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule
against pyramiding set forth in 38 C.F.R. § 4.14 does not
forbid consideration of a higher rating based on a greater
limitation of motion due to pain on use, including use during
flare-ups. The Court remanded the case to the Board to
obtain a medical evaluation that addressed whether pain
significantly limits functional ability during flare-ups or
when the joint is used repeatedly over a period of time. The
Court also held that the examiner should be asked to
determine whether the joint exhibits weakened movement,
excess fatigability or incoordination. If feasible, these
determinations were to be expressed in terms of additional
range of motion loss due to any pain, weakened movement,
excess fatigability or incoordination. Although the veteran
underwent an orthopedic examination for VA purposes in
September 1993, the Board concludes that a new examination of
the veteran's back is necessary to comply with the mandates
set forth in DeLuca, 8 Vet.App. 202 (1995). A neurological
examination should also be conducted, as detailed below.
The most recent medical records regarding the veteran were
received by the RO in September 1993. To ensure that the
veteran's claim will receive a fully informed evaluation,
clinical data taking into account the condition of the
veteran's knees and low back, since September 1993, should be
obtained and reviewed. 38 C.F.R. §§ 4.1, 4.2 (1996).
Under the circumstances described above, this case is
REMANDED, for the following actions:
1. The RO should contact the Tripler
Army Medical Center and attempt to obtain
a copy of the MRI referenced in the
medical report dated in June 1993. If
Tripler does not have the report, the
veteran should be contacted and requested
to furnish the name and address of the
facility which took the MRI. All logical
development should be undertaken in order
to obtain a copy of the report, and all
such efforts should be documented in the
claims file.
2. Any pertinent VA medical records
documenting treatment of the knees and
low back, subsequent to September 1993,
which have not already been associated
with the claims file, should be obtained
and made of record.
3. The RO should obtain the names and
addresses of any private medical care
providers who have treated the veteran
for and low back condition since
September 1993. After securing the
necessary releases, the RO should obtain
these records and permanently associate
them with the claims file.
4. The RO should schedule the veteran
for a special VA orthopedic and
neurological examinations. The veteran
and his representative should be notified
of the date, time and place of the
examinations in writing, and the RO
should advise the veteran that, pursuant
to federal regulations, failure to report
for these examinations, without good
cause shown, will result in the denial of
his claim for an increased rating. A
copy of this notification letter should
be associated with the claims file.
5. The veteran should thereafter be
afforded VA orthopedic and neurological
examinations to determine the current
severity of his service-connected low
back condition.
a. General information for the
examiners: The claims folder must
be made available to the examiners
for review prior to the
examinations. A copy of this Remand
decision must be provided to each
physician. Such tests as the
examiners deem necessary should be
performed.
b. Special instructions for the
orthopedic examiner: The examiner
should provide the answers/findings
indicated below to each question or
instruction posed. The answers
should be proceeded with the Roman
numeral corresponding to the Roman
numeral of the question or
instruction. No
instruction/question should be left
unanswered. If the examiner finds
that it is not feasible to answer a
particular question or follow a
particular instruction, he or she
should so indicate and provide an
explanation.
I. The examiner should
provide the ranges of
motion in degrees of the
veteran's low back. In
addition, the normal
ranges of motion should be
indicated. The examiner
should also note whether
there is listing of whole
spine to opposite side;
positive Goldthwaite’s
sign, loss of lateral
motion, osteoarthritic
changes, narrowing or
irregularity of a joint
space, muscle spasm on
extreme forward bending,
loss of lateral spine
motion, unilateral, in
standing position or
abnormal mobility on
forced motion.
II. The examiner should
indicate whether the
veteran's low back
exhibits weakened
movement, excess
fatigability, or
incoordination
attributable to the
service-connected
disability; and, if
feasible, these
determinations should be
expressed in terms of the
degree of additional range
of motion loss or
favorable or unfavorable
ankylosis due to any
weakened movement, excess
fatigability, or
incoordination.
III. The examiner should
express an opinion on
whether pain could
significantly limit
functional ability during
flare-ups or when the
veteran's low back is used
repeatedly over time.
This determination should,
if feasible, be portrayed
in terms of the degree of
additional range of motion
loss or favorable or
unfavorable ankylosis due
to pain on use or during
flare-ups.
IV. A complete work
history, since September
1993, should be taken by
the examiner.
c. Special instructions for the
neurological examiner: Any
neurological disorder co-existing
with the veteran’s service-connected
chronic low back strain should be
identified. The examiner should
state whether the veteran suffers
from recurring attacks of
intervertebral disc syndrome, and if
so, the degree of intermittent
relief he experiences between those
attacks. The examiner should
further state whether any
intervertebral disc syndrome that
may be present results in
incapacitating episodes and the
total duration of any of these
episodes.
The examiner should also be asked if
there is evidence that the veteran
has sciatic neuropathy with
characteristic pain. If so, the
examiner should state whether the
sciatic neuropathy results in
demonstrable muscle spasm, absent
ankle jerk, or any other
neurological finding.
The examiner should describe what
types of employment activity would
be limited because of the veteran’s
service-connected disability and
whether or not sedentary employment
would be feasible.
6. If the MRI report referenced in
paragraph 1 above is located, and it
reflects evidence of a disability of the
knees, the RO should request the veteran
to provide the names and addresses of any
medical providers from whom he has sought
current treatment for any knee
disability. All indicated records should
be obtained. Thereafter, orthopedic
examination of the veteran’s knees should
be conducted. The claims folder must be
made available to the examining physician
before the examination so that he/she may
review pertinent aspects of the veteran’s
military and medical records. Such tests
as the physician deems necessary should
be performed, including range of motion
studies.
a. The examiner should provide the
diagnosis of any existing bilateral
knee condition.
b. The examiner should then provide
an opinion as to whether it is at
least as likely as not that any
condition(s) of the knees had their
onset in service or whether it is at
least as likely as not that any
condition(s) of the knees have been
caused or aggravated by the service-
connected chronic low back strain.
The reasons for any opinions
expressed should be set forth in
detail.
7. Upon receipt of the examination
reports, the RO should review the reports
to ensure that they are adequate for
rating purposes. If an examination is
inadequate for any reason, the RO should
return the examination report to the
examining physician and request that all
questions be answered.
8. Following the completion of the
foregoing, the RO should review the
issues of service connection for a
bilateral knee condition and of the
rating to be assigned the service-
connected low back condition. If the
proposed regulations dealing with
revision of 38 C.F.R. Part 4, Diagnostic
Code 5293 are finalized, the RO should
consider these regulations. If the
benefits sought on appeal remain denied,
the veteran and his representative should
be furnished a supplemental statement of
the case, to include the provisions of
38 C.F.R. § 3.655, and given the
opportunity to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is informed. The purpose of this
REMAND is to obtain additional medical information and ensure
due process. No inference should be drawn regarding the
final disposition of the claims as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
IRIS S. SHERMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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